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And no, it is not incorporated into law, either. Despite what some people usually claim. So you are disputing the part of the article that says: "Every country

by Amadou 13y ago

And no, it is not incorporated into law, either. Despite what some people usually claim. So you are disputing the part of the article that says: "Every country in the EU is required to implement and publish these standards." I've followed Malamud's work in the USA and there he has been 100% accurate in his claims that the standards he publishes are incorporated into law by reference. You seem to be saying that he's wrong about how it works in the EU, and that what he published is not incorporated into law by reference. I'm inclined to give him the benefit of the doubt given his history. http://legalresearchplus.com/2008/09/27/carl-malamud-liberating-law/ http://legalresearchplus.com/2008/09/27/carl-malamud-liberat... If you have an explanation for how it is that he has mistakenly assumed that the standards he published are incorporated into EU law by reference, I'm all ears. Don't forget the cited document here: http://ec.europa.eu/enterprise/policies/european-standards/harmonised-standards/general-product-safety/ http://ec.europa.eu/enterprise/policies/european-standards/h... Which is a directive of the European Parliament and Council that specifies DIN EN 1400, the baby pacifier standard he's being sued for publishing.

Tomte 13y ago
Look, I know, EU "law" is difficult. I happen to have a little bit of knowledge about that, because I work on safety-related systems in industrial automation, where the same legal mechanisms apply (although "my" directive is 2006/42/EG, not Directive 2001/95/EC). Legally it works like this: 1. The EU issues a directive. Directives are not directly binding (some gray areas have developed over the years) and must be implemented by national legislatures into national law. The directive is the base line, national legislators may go above and beyond what the directive calls for. 2. In Germany we have implemented this directive (as well as "my directive", that's why I claim to have some knowledge about this issue, as well) in the "Produktsicherheitsgesetz" (Product Safety Act). You can find a translation here: http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/produktsicherheitsgesetz-prdsg-englisch.pdf?__blob=publicationFile http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/pro... 3. The law enables quite a few ministers to issue regulations that deal with specific things (in my example: the Ninth Regulation deals with machinery safety). Those regulations usually refer back to the EU Directive, incorporating it partly. For example, in the Ninth you can see (http://www.gesetze-im-internet.de/gsgv_9/__3.html http://www.gesetze-im-internet.de/gsgv_9/__3.html) that some requirements are basically just worded as "must meet requirements A, B and C from 2006/42/EG" or "must provide documentation as per Annex I of 2006/42/EG)". 4. Law and Regulations must be obeyed. Not some "EU law". This law. And only this law. The key insight is: how you fulfill the requirements is up to you. Also, the burden of proof that you fulfilled those requirements is yours. 5. Because those requirements are rather vague and abstract, and this burden of proof is not easily met, the law provides for some "convenience avenue" (well, and because that's the idea behind the EU's "New Approach"): You may demonstrate that you meet the requirements of certain applicable standards. If you do this (and you still have the burden of proof here!), you are automatically assumed to be in compliance with the law and the regulations. That's the so-called assumption of conformity. 6. That's where your linked table comes in: those are standards that are "harmonized under the Directive". If you find a standard that's (partly) applicable (you may not use a nuclear reactor standard to claim conformance of your children's toys...) on that list, you may shift your burden of proof from the law and the regulations to the standard (as far as it's applicable). 7. So far it doesn't sound very exciting. You just swapped one set of requirements where you bear the burden of proof with another set of requirements where you also bear the burden of proof. The thing is, those standards are tailored to your field, so they are much more practical and manageable. And the real kicker is this: you can get certification by TÜV, BG and other "notified bodies" provided for by EU law, that you met the requirements of the standard. You probably won't get TÜV or BG to certify that you met the requirements of the law itself. 8. Okay, but isn't that "incorporation"? No, it's not. Not legally. And not practically. First, remember: you have to follow the German law. Not some Directive. The latter isn't directly binding to anyone, except the national states insofar, as they are required to implemented it. The decision which standards are "harmonized" and thus invoke this assumption of conformity lies with EU organs, not national organs. So there is a real division of authority there. And, most important: you're always free to disregard any and all harmonized standards. If you feel good about meeting the requirements of the national law and regulations without the help of harmonized standards (and in some fields you mostly have to do that anyway, because no really applicable harmonized standards exist), you're free to do so.
- Amadou 13y ago
  In Germany we have implemented this directive Sounds like you are agreeing with Malamud. Regardless of whether or not various certification authorities trust the word of the companies that implement products to match the directive, the directive is the law in Germany. Right?
  - rowyourboat 13y ago
    The entire point of this post is that there's a difference between the law and the standard. The law is publicly published, of course. What Malamud did was publish the standard. And, this distinction is important: You have to follow the law, but how you do so is up to you. Implementing the standard is just one way of doing that. So the standard is not, in fact, part of the law, just a shortcut to compliance in some cases.
    - Amadou 13y ago
      You have to follow the law, but how you do so is up to you. Implementing the standard is just one way of doing that. That sounds like doublespeak to me. What other way is there to follow the law besides implementing the standard referenced by the law?
      - rowyourboat 13y ago
        Example: The law says that the pacifier must be made in such a way that it cannot be swallowed. Your options are: 1. Develop your own way of ensuring that the pacifier cannot be swallowed and prove that it's effective 2. Buy the standard, follow it and prove that you are following it. Option (2) is generally cheaper. Hence the market for these standards.
      - Tomte 13y ago
        Ask those who work in fields that don't have a harmonized standard at their disposal.
  - Tomte 13y ago

by Amadou 13y ago

Tomte 13y ago

Look, I know, EU "law" is difficult. I happen to have a little bit of knowledge about that, because I work on safety-related systems in industrial automation, where the same legal mechanisms apply (although "my" directive is 2006/42/EG, not Directive 2001/95/EC). Legally it works like this: 1. The EU issues a directive. Directives are not directly binding (some gray areas have developed over the years) and must be implemented by national legislatures into national law. The directive is the base line, national legislators may go above and beyond what the directive calls for. 2. In Germany we have implemented this directive (as well as "my directive", that's why I claim to have some knowledge about this issue, as well) in the "Produktsicherheitsgesetz" (Product Safety Act). You can find a translation here: http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/produktsicherheitsgesetz-prdsg-englisch.pdf?__blob=publicationFile http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Meldungen/pro... 3. The law enables quite a few ministers to issue regulations that deal with specific things (in my example: the Ninth Regulation deals with machinery safety). Those regulations usually refer back to the EU Directive, incorporating it partly. For example, in the Ninth you can see (http://www.gesetze-im-internet.de/gsgv_9/__3.html http://www.gesetze-im-internet.de/gsgv_9/__3.html) that some requirements are basically just worded as "must meet requirements A, B and C from 2006/42/EG" or "must provide documentation as per Annex I of 2006/42/EG)". 4. Law and Regulations must be obeyed. Not some "EU law". This law. And only this law. The key insight is: how you fulfill the requirements is up to you. Also, the burden of proof that you fulfilled those requirements is yours. 5. Because those requirements are rather vague and abstract, and this burden of proof is not easily met, the law provides for some "convenience avenue" (well, and because that's the idea behind the EU's "New Approach"): You may demonstrate that you meet the requirements of certain applicable standards. If you do this (and you still have the burden of proof here!), you are automatically assumed to be in compliance with the law and the regulations. That's the so-called assumption of conformity. 6. That's where your linked table comes in: those are standards that are "harmonized under the Directive". If you find a standard that's (partly) applicable (you may not use a nuclear reactor standard to claim conformance of your children's toys...) on that list, you may shift your burden of proof from the law and the regulations to the standard (as far as it's applicable). 7. So far it doesn't sound very exciting. You just swapped one set of requirements where you bear the burden of proof with another set of requirements where you also bear the burden of proof. The thing is, those standards are tailored to your field, so they are much more practical and manageable. And the real kicker is this: you can get certification by TÜV, BG and other "notified bodies" provided for by EU law, that you met the requirements of the standard. You probably won't get TÜV or BG to certify that you met the requirements of the law itself. 8. Okay, but isn't that "incorporation"? No, it's not. Not legally. And not practically. First, remember: you have to follow the German law. Not some Directive. The latter isn't directly binding to anyone, except the national states insofar, as they are required to implemented it. The decision which standards are "harmonized" and thus invoke this assumption of conformity lies with EU organs, not national organs. So there is a real division of authority there. And, most important: you're always free to disregard any and all harmonized standards. If you feel good about meeting the requirements of the national law and regulations without the help of harmonized standards (and in some fields you mostly have to do that anyway, because no really applicable harmonized standards exist), you're free to do so.

Amadou 13y ago
In Germany we have implemented this directive Sounds like you are agreeing with Malamud. Regardless of whether or not various certification authorities trust the word of the companies that implement products to match the directive, the directive is the law in Germany. Right?
- rowyourboat 13y ago
  The entire point of this post is that there's a difference between the law and the standard. The law is publicly published, of course. What Malamud did was publish the standard. And, this distinction is important: You have to follow the law, but how you do so is up to you. Implementing the standard is just one way of doing that. So the standard is not, in fact, part of the law, just a shortcut to compliance in some cases.
  - Amadou 13y ago
    You have to follow the law, but how you do so is up to you. Implementing the standard is just one way of doing that. That sounds like doublespeak to me. What other way is there to follow the law besides implementing the standard referenced by the law?
    - rowyourboat 13y ago
      Example: The law says that the pacifier must be made in such a way that it cannot be swallowed. Your options are: 1. Develop your own way of ensuring that the pacifier cannot be swallowed and prove that it's effective 2. Buy the standard, follow it and prove that you are following it. Option (2) is generally cheaper. Hence the market for these standards.
    - Tomte 13y ago
      Ask those who work in fields that don't have a harmonized standard at their disposal.
- Tomte 13y ago